Q:What does Ohio law say about how police interrogations and lineups are conducted?

A:Senate Bill 77 (SB 77), which became effective on July 6, 2010, is a comprehensive criminal justice reform law. Its goal was to help prevent wrongful convictions and to make it easier to obtain DNA testing when DNA testing could undermine confidence in a “guilty” verdict. In addition to its DNA-testing provisions, the law reforms police interrogations and lineups in order to assist in preventing wrongful convictions. This article addresses the parts of the law pertaining to police interrogations and lineups.

Q:Why did SB 77 change how line-ups and interrogations were done in criminal cases?

A:DNA testing does not solve the problem of wrongful convictions. Biological evidence is found in less than 10 percent of criminal cases. However, the same factors lead to wrongful convictions, regardless of the presence of biological evidence. These factors can also confound investigations from the earliest stages, and critical time is lost while police are distracted from the real perpetrator, focusing instead on building the case against an innocent person.

Mistaken eyewitness identifications contributed to approximately 70 percent of the 344 wrongful convictions in the United States that have been overturned by post-conviction DNA evidence. Many variables affect the reliability of an eyewitness identification, including: the type of lineup used; the selection of “fillers” (members of a lineup or photo array who are not the suspect); blind administration; instructions to witnesses before identification procedures; administration of lineups or photo arrays; and communication with witnesses after they make an identification. Each of the above variables impacts the reliability of an eyewitness identification. For example, a study of the first 250 DNA exonerations showed that mistaken eyewitness identification was a factor in 160 of those cases, and that suggestive remarks to the witness by law enforcement was a factor in 28 percent of the 160 cases. Such remarks are often made as a result of the officer’s familiarity with the case.

In about 31 percent of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions, or pled guilty. These cases show that confessions are sometimes motivated by external influences rather than internal knowledge or actual guilt. Researchers have determined that these factors contribute to or cause false confessions:

• real or perceived intimidation of the suspect by law enforcement;

• use of force or perceived threat of force by law enforcement during interrogation;

• compromised reasoning ability of the suspect, due to exhaustion, stress, hunger, substance use, and, in some cases, mental limitations, or limited education;

• devious interrogation techniques, such as untrue statements about the presence of incriminating evidence; and

• the suspect’s fear that failure to confess will yield a harsher punishment, ignorance of the law, or misunderstanding of the situation.

In addition to the factors above, false confessions may also contain “contamination error.” A contamination error occurs when, after admitting guilt, the police help create a narrative of the crime that includes facts that an innocent person would not know.

Electronic recording helps provide an objective record of what happened. The electronic recording should show both the suspect and the interrogator—or just the interrogator—and should record the entire interrogation. Research suggests that jurors tend to disregard the interrogator’s appearance when the video camera is fixed upon the suspect. This may lead jurors to conclude that the suspect confessed freely, even when that confession is false. Recording can also help law enforcement with the investigation and prevent disputes about what occurred during interrogation.

Q:How has SB 77 affected identification lineups in criminal cases?

A: SB 77 outlines a number of specific procedures for law enforcement agencies conducting live or photo lineups to control the variables impacting the reliability of eyewitness identifications. These procedures are designed to help the witness identify the perpetrator rather than an innocent person in the line-up that looks most like the perpetrator. SB 77 also says that the officer conducting the line-up must not know the suspect’s identity or which lineup member the eyewitness is viewing, unless the officer can give a good reason why this requirement is not practical in the particular situation. The jury may consider whether an eyewitness identification is reliable based on whether a lineup was conducted according to the procedures described in SB 77.

Q: What does SB 77 say about interrogations of suspects?

A: SB 77 presumes that all recorded statements in criminal cases are voluntary if they occur in a place of detention and are made by a person suspected of aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, first- or second-degree felonious aggravated vehicular homicide, rape or sexual battery. This section of the statute was intended to provide an incentive to record interrogations. However, in 2016, the Supreme Court of Ohio held that it is unconstitutional to presume that a statement a juvenile makes under interrogation while in custody is voluntary. The Court also held that, even though the statute presumes that recorded statements are voluntary, this does not necessarily mean that a suspect intelligently, knowingly and voluntarily waived his or her Miranda rights. According to the Court, the state still must prove a valid waiver of Miranda rights, whether the statement was made by a juvenile or an adult.

Although the law does not require interrogations to be recorded, law enforcement personnel must keep any audio and audio-visual recordings until all appeals, and post-conviction relief proceedings (both state and federal) are finished, or the time limit for appeals has passed. The defendant may ask the court to keep the recordings longer.

​11/26/2016

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). ​It was prepared by attorney Carrie Wood of the Ohio Public Defender’s Office.

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Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.